Peele v. Hartsell , 258 N.C. 680 ( 1963 )

129 S.E.2d 97 (1963) 258 N.C. 680

Ethel Lee PEELE, Leon Smith and wife, Lois G. Smith, by her Next Friend, George L. Cause,
v.
L. E. HARTSELL, t/a Hartsell Motor Company.

No. 467.

Supreme Court of North Carolina.

February 1, 1963.

Pittman, Pittman & Pittman, Rockingham, for plaintiffs-appellants.

Webb & Lee by Charles Sedberry, Rockingham, for defendant-appellee.

SHARP, Justice.

Plaintiffs have misconstrued the nature of the cause of action which they have stated. It is not in contract but in tort. Pinnix v. Toomey, 242 N.C. 358, 362, 87 S.E.2d 893; 12 Am.Jur., Contracts, Section 458. Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551.

The following observations of the Oklahoma Court in Jackson v. Central Torpedo Company, 117 Okl. 245, 246 P. 426, 46 A.L.R. 338, are pertinent:

"``If the transaction complained of had its origin in a contract which placed the parties in such a relation that, in attempting to perform the promised service, the tort was committed, then the breach of the contract is not the gravamen of the suit. The contract in such case is mere inducement, creating the state of things which furnishes the occasion of the tort, and in all such cases the remedy is an action on the case. For illustration, take the contract of a carpenter to repair a house, the implication of his contract is that he will bring to the service reasonable skill, good faith, and diligence. If he fails to do the work, or leaves the house incomplete, the only remedy against him is ex contractu; but suppose he, by want of care or skill, destroys or wastes material, or makes the repairs so unskillfully as to damage other portions of the house; this is tort, for which the contract only furnished the occasion. Mobile L. Ins. Co. v. Randall, 74 Ala. 170.'"

However, the relief to which plaintiffs are entitled is determined by the evidence and not the conclusions of the pleader or the prayer for relief. 3 N.C.Index, Pleadings, Section 4, p. 610.

It is plaintiffs' contention that when Barnes attached defendant's short dog to the trailer, possession and control of the trailer passed to the defendant and there was a bailment; that thereafter the trailer was damaged while in defendant's possession and proof of this damage entitled plaintiffs to go to the jury under the prima facie case rule stated in Hanes v. Shapiro, 168 N.C. 24, 84 S.E. 33; Miller's Mutual Insurance Co. of Ill. v. Atkinson's Motors, Inc., 240 N.C. 183, 81 S.E.2d 416, and many other cases. The prima facie rule is not applicable here; plaintiffs have no need of it. They know exactly how the damage to the trailer occurred. Mrs. Smith was an eye witness to the entire fiasco. Miller's Mutual Insurance Co. of Ill. v. Atkinson's Motors, Inc., supra.

It matters not whether the relationship between plaintiffs and defendant was that of bailor and bailee. A contractual relationship existed between them, and out of that relationship arose the defendant's duty to exercise due care to protect the plaintiffs' trailer. Miller's Mutual Insurance Asso. of Ill. v. Parker, 234 N.C. 20, 65 S.E.2d 341. As defendant frankly concedes in his brief, "(W)hile Barnes was performing defendant's contract with plaintiffs to move the trailer from its original location in Richmond County to Rock Hill, South Carolina, Barnes was under a duty to exercise reasonable care not to cause damage to said trailer."

The evidence was plenary that the negligence of Barnes caused the trailer to become stuck in the mud, but defendant contends that if the trailer were damaged, the damage occurred while it was being removed from the mud by the wrecker. Defendant argues that he is not responsible because, upon being informed that the trailer was stuck, he instructed Barnes to unhook the short dog from it, return to his place of business and leave the trailer alone. It is not necessary to decide what defendant's liability would have been had these instructions been followed by Barnes and by defendant himself. They were not. When Mrs. Smith insisted that defendant comply with his contract he came to the scene himself. Defendant admits in his brief that "there is evidence that he (defendant) was telling Barnes how to get the trailer unstuck." He maintains, however, that there is no evidence that these instructions proximately caused damage to the trailer. With this contention we cannot agree.

The trailer had front, back, and side hitches. Under defendant's direction the short dog was hooked to the side of the trailer, the wrecker hooked to the front bumper of the short dog, and the two vehicles together pulled the trailer sideways through the mud. Under the evidence produced, it was for the jury to say whether the defendant should reasonably have anticipated that damage to the trailer would result from this method of extraction.

"On motion to nonsuit, plaintiff's evidence is to be taken as true and all the evidence considered in the light most favorable to plaintiff, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence." 4 N.C.Index, Trial, Section 21, p. 312.

The motion for nonsuit was erroneously granted.

Since this case goes back for trial by jury, plaintiffs' assignment of error No. 2 merits attention. Paul Many, a contractor with fifteen years experience "in this business," testified that he examined the trailer on February 13, 1962 in Charlotte. Upon objection, his proffered testimony with reference to its condition on that date was excluded. Many first saw the trailer three years after the alleged damage had occurred; repairs had been made or attempted; it had been moved three times. The trial judge reasoned that his evidence was too remote to throw any light on the difference in the value of the trailer immediately before and immediately after the injury on February 13, 1959. The exclusion of this evidence was not error.

"Within what range as to place and time witnesses shall be confined in their testimony to the value of personal property, when its value comes in question, must often depend upon the circumstances of the case and be in the discretion of the trial judge." 15 Am.Jur., Damages, Section 349.

For the reasons herein stated the judgment below is

Reversed.